Food law

New Jersey restaurant and club owners who do not possess a coveted New Jersey liquor license can now advertise that they allow customers to bring their own beer or wine or as it is more commonly known, “Bring Your Own Booze” (BYOB).

BYOB is a concept as inherent in New Jersey culture as Bon Jovi. Tommy’s and Gina’s date night involves a cozy pizzeria where the veal special is outstanding, but the pizzeria does not serve liquor. Yearning for a little wine with dinner, they swing by the liquor store a few blocks away and pick up a bottle of red wine on the way to their romantic meal. While this scene is common place in the restaurants of New Jersey, a sign or other advertisement publicizing “BYOB” is not to be found. New Jersey’s archaic liquor license laws have always banned restaurant owners from publicizing the ability for customers to BYOB, but on November 20, 2018, a New Jersey Federal Judge struck down the prohibition ruling that the ban was unconstitutional because it places a content-based restriction on commercial speech.

In order for a restriction on speech to be viewed as constitutional, it must pass strict scrutiny, the most stringent standard of judicial review used by the Federal Courts. Here, the court found that the content-based restriction on speech failed the strict scrutiny test because it was not supported by a compelling government interest nor was it the least restrictive means of achieving the government’s stated purpose.

Commercial speech such as BYOB advertisement is no exception to the high standard of review and such content based restrictions are presumptively unconstitutional. The ruling is just in time for the start of 2019. It doesn’t make a difference if Tommy and Gina make it or not, but they can now be better informed of their BYOB options.

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